United States v. Williams

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4857
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY LAMONT WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-04-23-H)
Submitted: June 24, 2005 Decided: July 29, 2005
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Lamont Williams pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of fifty-four months imprisonment.* Williams
seeks to appeal his sentence on the ground that the district court
erred by making factual findings that increased the guideline
sentence and violated the Sixth Amendment under Blakely v.
Washington, 124 S. Ct. 2531 (2004). The government asserts that
Williams’ appeal should be dismissed pursuant to the waiver
provision in his plea agreement. In his reply brief, Williams
contends that the waiver is not enforceable because the plea
agreement contemplated that he would be sentenced under a mandatory
guidelines scheme and, when he entered his guilty plea, Williams
could not foresee that the mandatory guidelines would be held
unconstitutional, as they were in United States v. Booker, 125 S.
Ct. 738 (2005). For the reasons explained below, we dismiss the
appeal.
Under the terms of his plea agreement, Williams agreed:
To waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, reserving only
the right to appeal from an upward departure
from the guideline range that is established
at sentencing, and further to waive all rights
to contest the conviction or sentence in any
post-conviction proceeding, including one
*
The court also pronounced an alternative non-guideline
sentence under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), a
term of five years imprisonment.
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pursuant to 28 U.S.C. § 2255, excepting an
appeal or motion based upon grounds of
ineffective assistance of counsel or
prosecutorial misconduct not known to the
Defendant at the time of the Defendant’s
guilty plea.
This court reviews the validity of a waiver de novo.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
issue being appealed is within the scope of the waiver. United
States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
Fed. R. Crim. P. 11 colloquy, the waiver is both valid and
enforceable. Wessells, 936 F.2d at 167-68. However, “the issue
ultimately is evaluated by reference to the totality of the
circumstances and must depend upon the particular facts and
circumstances surrounding that case.” United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005) (internal quotations and citations
omitted).
Here, the record reveals that the district court accepted
guilty pleas from a number of defendants at a hearing conducted
pursuant to Fed. R. Crim. P. 11. The court conducted a thorough
Rule 11 inquiry. Although the court did not address Williams
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personally about the waiver provision in his plea agreement, the
court warned the group of defendants, including Williams, that a
waiver of the right to appeal in a plea agreement could be binding.
When he was questioned personally by the court, Williams assured
the court that he had read and understood the plea agreement which
he had signed.
On appeal, Williams does not claim that he was unaware of
the waiver or its effect. Instead, he argues that his waiver was
not knowing and intelligent because he was not informed that he was
agreeing to be sentenced under a sentencing scheme that was later
held to be unconstitutional. He also contends that, if the waiver
is effective, his sentence constituted an upward departure from the
“relevant statutory maximum,” i.e., the guideline range that would
have applied without the enhancements adopted by the district
court. We are not persuaded that Williams’ sentence constituted an
upward departure. Moreover, we recently held that a waiver of the
right to appeal contained in a plea agreement that was accepted
before the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), was not invalidated by the change in the law
effected by Booker. Blick, 408 F.3d at 170-73. We conclude that
Williams’ waiver of his right to appeal was knowing and voluntary,
that the sentence was within the scope of the waiver provision, and
that the waiver is enforceable.
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We therefore dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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